01990339
03-20-2000
Trevor A. McLachlan, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Trevor A. McLachlan v. Department of the Army
01990339
March 20, 2000
Trevor A. McLachlan, )
Complainant, )
)
v. )
) Appeal No. 01990339
Louis Caldera, ) Agency No. T-0548-TX-A-09-98-0
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On October 15, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated September 2, 1998,
dismissing his complaint on the grounds that it was untimely filed.<1>
The FAD also dismissed complainant's reprisal basis, and determining that
reprisal was the sole basis raised, dismissed the complaint for failure
to state a claim. Accordingly, the Commission accepts the appeal in
accordance with EEOC Order No. 960, as amended.
On February 19, 1998, complainant contacted an EEO counselor alleging he
was discriminated against when: on February 17, 1998 he was not selected
for the Electronics Mechanic position, WG-2604-10. Informal efforts
to resolve complainant's concerns were unsuccessful. Accordingly,
complainant filed a formal complaint..
In a FAD dated September 2, 1998, the agency dismissed complainant's
complaint. The FAD indicated that the complaint raised an improper
basis: reprisal for having reported his supervisor to the Texas State
Guard rather than an EEO activity. Moreover, the agency stated that
complainant failed to timely file the formal complaint.
On appeal, complainant contends that all of his complaints have been
timely filed.
In response, the agency argues that complainant received his Right to
File a Formal Complaint on April 8, 1998 but the formal complaint, dated
May 29, 1998, was not received by the EEO office until August 19, 1998.
With respect to the reprisal basis, the agency contends that complainant
had no EEO protected activity prior to filing the instant complaint and
that reporting his supervisor to the Inspector General (IG) does not
meet the EEO definition of reprisal.
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (to be codified at 29
C.F.R. �1614.105(d)) requires that after a complainant contacts an EEO
Counselor, and the matter has not been resolved, "the aggrieved person
shall be informed in writing by the Counselor ... of the right to file a
discrimination complaint." The notice shall inform the complainant of the
right to file a discrimination complaint within 15 days of receipt of the
notice. EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (to be codified at 29
C.F.R. �1614.107(a)(2)) provides that an agency shall dismiss a complaint
that fails to comply with the time limits contained in �1614.106.
Based on a review of the record, we find that the agency has failed to
substantiate its conclusion that complainant failed to timely file the
formal complaint. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). A Notice of Final Interview, notifying
complainant of the fifteen (15) calendar day time limitation, was signed
by complainant on April 8, 1998. The formal complaint is dated May 29,
1998. The agency contends that it was not received until August 19, 1998.
However, there is no indication of this in the record. Further, in the
formal complaint, complainant included a statement explaining that an
extension for counseling had been granted and therefore the complaint
had been timely filed. The record contains two copies an Agreement to
Extend Counseling for 30 days, one signed by complainant on April 8, 1998
and another signed by the EEO counselor on March 27, 1998. The agency
has not addressed complainant's argument that counseling was extended.
Therefore, the agency's dismissal of complainant's complaint for untimely
filing was improper and is REVERSED.
With regard to complainant's basis of reprisal, we find that complainant
has failed to allege that he was retaliated against for prior EEO
activity. EEOC Regulation 29 C.F.R. �1614.101(b) provides that no person
shall be subject to retaliation for opposing any practice made unlawful
by Title VII, the Age Discrimination in Employment Act (ADEA), the Equal
Pay Act (EPA), or the Rehabilitation Act, or for participating in any
stage of administrative or judicial proceedings under those statutes.
In order to establish discrimination based on retaliation, an individual
must initially be able to show that he or she engaged in prior EEO
activity based on 29 C.F.R. �1614.101(b). A review of the Counselor's
Report indicates that complainant believes the reprisal stems from
an incident where he reported his supervisor to the IG. Accordingly,
the agency's decision to dismiss the basis of reprisal for reporting
his supervisor was proper and is AFFIRMED.
The Commission notes, however, that the record reveals that complainant
has also alleged another basis. On appeal, complainant raises the
basis of race. The Commission has held that a complainant may allege
discrimination on all applicable bases, including sex, race, national
origin, color, religion, age, disability and reprisal, and may amend
his or her complaint at any time, including at the hearing, to add or
delete bases without changing the identity of the claim. See Sanchez
v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995).
Here, the record indicates that complainant claims he was the victim of
unlawful employment discrimination on the basis of race. Accordingly,
the agency's decision to dismiss complainant's complaint in its
entirety was improper, since complainant did allege one covered basis
of discrimination. Accordingly, the agency's decision to dismiss the
complaint is REVERSED. Complainant's complaint of discrimination based
on race is REMANDED to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE
COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
March 20, 2000
_____________________ _____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
____________ _______________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.